83819 13 v. <<

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Supreme Court, Appellate Division, First Department.

Malou Mananghaya, et al., Plaintiffs, 83819/13 v.

Bronx–Lebanon Hospital, et al., Defendants.  Napoli Transportation, Inc., doing business as C & L Towing Services, Inc., Third–Party Plaintiff, v.

Aggreko, LLC, Third–Party Defendant.—-—-—The Bronx–Lebanon Hospital Center, Second Third–Party Plaintiff–Respondent, v. Aggreko, LLC, Second Third–Party Defendant–Appellant.


Decided: February 25, 2016

Friedman, J.P., Sweeny, Saxe, Gische, JJ. O'Connor Reed LLP, Port Chester (Amy L. Fenno of counsel), for appellant. Ahmuty, Demers & McManus, New York (Glenn A. Kaminska of counsel), for respondent.


Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered January 9, 2014, which denied second third-party defendant's (Aggreko) motion to dismiss the second third-party complaint, pursuant to CPLR 3211(a)(1), (7), and (8), unanimously affirmed, without costs.

The motion court correctly determined that the documentary evidence tendered by Aggreko—rental agreement terms and conditions unsigned by third-party plaintiff (the hospital)—did not conclusively establish a defense to the second third-party complaint as a matter of law (see Goshen v. Mutual Life Ins. Co., 98 N.Y.2d 314, 326 [2002] ).

Nor does Aggreko and the hospital's course of conduct manifest that the hospital accepted the rental agreement terms and conditions (see Brown Bros. Elec. Contrs. v Beam Constr.  Corp., 41 N.Y.2d 397, 399–400 [1977] ).

We have considered Aggreko's remaining contentions and find them unavailing.